Category Archives: Law: Con Law: Marriage

Advocates of a 'plain meaning' approach to constitutional interpretation may have to conclude that Texas accidentally banned all marriage, as described in this McClatchy report, Texas' gay marriage ban may have banned all marriages

Barbara Ann Radnofsky, a Houston lawyer and Democratic candidate for attorney general, says that a 22-word clause in a 2005 constitutional amendment designed to ban gay marriages erroneously endangers the legal status of all marriages in the state.

The amendment, approved by the Legislature and overwhelmingly ratified by voters, declares that “marriage in this state shall consist only of the union of one man and one woman.” But the troublemaking phrase, as Radnofsky sees it, is Subsection B, which declares:

“This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.”

Architects of the amendment included the clause to ban same-sex civil unions and domestic partnerships. But Radnofsky, who was a member of the powerhouse Vinson & Elkins law firm in Houston for 27 years until retiring in 2006, says the wording of Subsection B effectively “eliminates marriage in Texas,” including common-law marriages.

She calls it a “massive mistake” and blames the current attorney general, Republican Greg Abbott, for allowing the language to become part of the Texas Constitution. Radnofsky called on Abbott to acknowledge the wording as an error and consider an apology. She also said that another constitutional amendment may be necessary to reverse the problem.

“You do not have to have a fancy law degree to read this and understand what it plainly says,” said Radnofsky, who will be at Texas Christian University today as part of a five-city tour to kick off her campaign.

Being given to a more of a purpositive approach, I'd be willing to invoke the infamous Holy Trinity decision, and say this clause meant what the voters obviously thought it meant. But would someone who believed in a pure 'plain meaning' approach — like Justices Thomas and Scalia claim to — be able to reach that conclusion?

I've just learned that someone has proclaimed this Freedom to Marry Week:

Our kids will look back on this the way we look at the First Civil Rights Movement.

Text of California Supreme Court's lengthy 4-3 decision stating that same-sex couples have a state right to marry.

I think there's a very real likelihood this could get overturned at the polls in the next election. Even so, I would imagine — but haven't researched the question — that marriages entered into before that happens would remain valid.

Expect the price of flowers to be high in June.

The New York Times has an obituary today of one of those unintentional American heroes, Mildred Loving, one of the plaintiffs in Loving v. Virginia, the case 1967 decision in which the US Supreme Court struck down state miscegenation laws as a violation of the Due Process and Equal Protection clause of the Constitution.

As the NYT story notes, last year on the 40th anniversary of the Supreme Court's decision, Ms. Loving (could there ever be a more aptly named plaintiff?) issued a statement in support of gay marriage.

Ms. Loving's death is moment to reflect on how ordinary people can influence major changes. It's also a reminder of how different today's Supreme Court is from that of 1967. The decision for the Lovings was unanimous. Does anyone actually think we'd be better off today if the 1967 court had ruled differently?

Some choice quotes from the Supreme Court's 1967 opinion, ripped slightly out of context as the 14th amendment, like all the civil war amendments, was understood to be first and foremost about ensuring black Americans full citizenship:

The State argues that statements in the Thirty-ninth Congress about the time of the passage of the Fourteenth Amendment indicate that the Framers did not intend the Amendment to make unconstitutional state miscegenation laws. Many of the statements alluded to by the State concern the debates over the Freedmen's Bureau Bill, which President Johnson vetoed, and the Civil Rights Act of 1866, 14 Stat. 27, enacted over his veto. While these statements have some relevance to the intention of Congress in submitting the Fourteenth Amendment, it must be understood that they pertained to the passage of specific statutes and not to the broader, organic purpose of a constitutional amendment. As for the various statements directly concerning the Fourteenth Amendment, we have said in connection with a related problem, that although these historical sources “cast some light” they are not sufficient to resolve the problem; “[a]t best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among `all persons born or naturalized in the United States.' Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect.”

…

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.